45 BVerfGE 187 (1977)

[Facts:

This case has its origin as a District Court case in the town of Verden. The defendant Detlev R. was policeman and drug dealer. One of his customers, the substance abuser Guenter L., blackmailed the defendant and demanded free drugs. Detlev R. pretended to go along and scheduled a visit at Guenter L.'s house. The defendant actually provided Guenter L. with the demanded drugs, but while the latter was busy preparing an injection, Detlev R. fatally shot him in the head three times at close range.

The case is before the Federal Constitutional Court due to a referral from the Verden District Court. The reason for the deferral was that the Verden court deemed the murder and the manslaughter statutes, Sections 211 and 212, respectively, of the Criminal Code in the revised version of 1969, incompatible with the human dignity clause of Article 1.1. of the Basic Law. The murder and the manslaughter statute both provide for life imprisonment in extreme cases--such as homicide to satisfy sexual urges, homicide as a result of greed, homicide to cover up another crime, extreme homicides in general, et cetera. The Verden court argued in detail that life imprisonment can be shown to destroy human beings within about twenty years. The District Court outlined how such long prison terms turn people into spiritual and physical wrecks. It concluded that the permanent exclusion of the criminal from society destroys him psychologically and therefore the legislator violated its duty to respect human dignity as commanded by Article 1.1. of the Basic Law when it passed Sections 211 and 212 of the Criminal Code.

{Translator's note:

The Verden court also found the statutes in violation with Article 2.2. second sentence in conjunction with Article 19.2. of the Basic Law, as well as with Article 3.1. of the Basic Law. The holding by the Federal Constitutional Court includes discussions of these objections as well. I chose to drop them and focus on the discussion of human dignity.}

Issue:

Are statutes which allow for life imprisonment in certain extreme cases of homicide compatible with Article 1.1. of the Basic Law which commands that the state has the duty to respect and protect human dignity?

Holding by the First Senate:

Yes, it is.

Discussion:

The Federal Constitutional Court reviewed briefs from various German courts and state justice departments. Then it surveyed scientific studies and statistics on life imprisonment. After it finds the referral by the District Court valid, proceeds with the discussion.]

C.

Section 211 of the Criminal Code is, within the scope of this review and in compliance with the following text and the restricted interpretation [of Section 211] which can be derived there from, compatible with the Basic Law...

II.

1. Respect and protection of human dignity are among the constitutional principles of the Basic law. The free human personality and [human] dignity represent the highest legal values within the constitutional order. The state in all its form has the duty to respect and to protect the dignity of human beings.

This is founded on the conception of man as a spiritual-moral being, that has the potential to determine himself in freedom and develop from within. This freedom, within the meaning of the Basic Law, is not the one of an isolated and self-regarding individual, but rather [it is the freedom of an individual] that is related to the community and bound by it. [Due to the fact that the individual is bound by the community, the freedom] cannot be in principle unlimited. The individual must allow those limitations of his freedom to act that the legislator deems bearable [and necessary] in particular factual circumstances for the nourishment and support of the communal living with each other; however, the autonomy of the individual must be protected. This means, also, that within the community each individual must be recognized, as a matter of principle, as a member with equal rights and a value of his own. The sentence the human being must always remain the end of itself@ has unlimited validity in all areas of the law; for the dignity of man as person, which can never be taken, consists particularly therein, that he remains recognized as a person who bears responsibility for himself.

In the area of criminal law, in which highest demands to the maintenance of justice are posed, Article 1.1. of the Basic Law determines the understanding of the nature of penal sanctions and the relation between guilt and atonement. The fundamental principle nulla poena sine culpa@ has the rank of a constitutional norm. Every penal sanction must bear a just relation to the severity of the offense and the guilt of the offender. The command to respect human dignity means in particular that cruel, inhuman and degrading punishments are not permitted. The offender may not be turned into a mere object of [the state's] fight against crime under violation of his constitutionally protected right to social worth and respect. The fundamental prerequisites of individual and social existence of men must be preserved. From Article 1.1. of the Basic Law, in conjunction with the principle to maintain a state based on social justice, one can--and this is particularly true in the execution of criminal punishments--derive the duty of the state to allow [everyone at least] that minimum level of existence at which human dignity is conceived. It would be inconsistent with human dignity perceived in this way if the state were to claim the right to forcefully strip a human of his freedom without [the human] having at least the possibility to ever regain freedom.

[In the course of the discussion] one must never loose sight [of this principle]: The dignity of the human being is something indispensable. The recognition of what is necessary to comply with the command to respect human dignity is, however, inseparable from the historical development. The history of criminal law clearly shows that most cruel punishments were always replaced by milder punishments. The progress, away from more raw towards more humane, away from more simple towards more differentiated forms of punishment, has continued, and the path future progress will take becomes visible [from this historical analysis]. The judgment on what is necessary for [the maintenance of] human dignity can therefore only rest on present understanding and claim no right to timeless validity.

2. If these standards are used in assessing nature and effect of life imprisonment, one reaches the conclusion that no violation of Article 1.1. of the Basic Law is before the court...

[The court engaged in a lengthy discussion about the actual negative effects of very long prison terms and found that reputable experts come to very divergent conclusions.]

c) With such a factual background, the constitutional review must exercise restraint. It is true that the Federal Constitutional Court has the duty to protect the basic rights against [infringements] from the legislator. Therefore, the court is in its review not bound by the legal understanding of the legislator. However, if assessments and actual judgments by the legislator are of importance [for the constitutional review], then the court may, as a matter of principle, only overrule those which are possible to disproof. It seems worrisome, however, that, even in cases where serious interference with basic rights are under review, uncertainties in the evaluation of facts [are to be resolved] to the burden of the holder of the basic right. When the Federal Constitutional Court nevertheless denied to find a violation of the inviolability of the dignity of man as guaranteed by Article 1.1. of the Basic Law, [that decision] was mainly due to the following reasons:

aa) Lifetime imprisonment finds its constitutionally necessary complement in a sensible execution of treatment. Penal institutions are obliged, even in the cases of life imprisonment, to promote the rehabilitation of the inmates, to maintain their ability and willingness to function as human beings and to offset damaging consequences caused by the loss of freedom and thereby especially counter all deforming alterations of personality. These obligations for the execution of the penal sanctions are based on the Constitution, they can be derived from the inviolability of the dignity of man as guaranteed by Article 1.1. of the Basic Law. If these obligations are adequately complied with by the penal institutions, then [the penal institutions] substantially contribute to counter, for instance, the threat of changing personalities of inmates.

The execution of criminal penalties in the Federal Republic of Germany has already been more [as of today] than a mere Execution to incapacitate, but rather [the authorities] have attempted to achieve an execution with treatment aimed at the reintegration [of the criminals] into society. This is consistent with former decisions by the Federal Constitutional Court on issues of the execution of criminal penalties. The court has emphasized several times that the demand to achieve a reintegration into society [of the criminals] is constitutionally consistent with the self-understanding of a community which put human dignity at its center and which is committed to the principle of social justice. The prisoner's interest in the reintegration into society flows from Article 1 of the Basic Law in relation with Article 2.1. of the Basic Law. The condemned offender must be granted the chance to reenter the community after having atoned for his crime. It is the duty of the state to take all possible measures it can [reasonably] be expected to bear, which are useful and necessary to achieve this goal of the execution of the criminal penalty.

If one assumes that even [the criminal] sentenced to life imprisonment must principally be granted a possibility to regain his freedom, then he must also have a right to be prepared to reenter the society, even if he will only after a long period of atonement for his crime have the possibility to be obliged to handle a life in freedom. Even in such cases can the execution of the criminal penalty establish the prerequisites for a later release and ease the convict's reintegration into society...

bb) [Empirical data shows] that the full serving of a life imprisonment sentence is a rare exception. [The criminals] sentenced to life imprisonment--except in a few cases in which the predictions [of social reintegration] are negative and for reasons of public safety a continued execution of the sentence is necessary--are [most often] being released on parole. [This practice] results in a further significant limitation of the danger of serious alterations of [inmates'] personalities. [A summary study of the parole administration in the states shows] that over a period of thirty years, of 702 inmates with lifetime sentences who were released, very few (48) were released before 10 years and also very few were released after the extreme length of up to thirty years (27). The vast majority of parole releases happens between the 15th and the 25th year of the sentence...

III.

[The court then raised the problematic issue that parole is granted on a discretionary basis and noted the divergent standards in various states.]

4.a) The assessment of the constitutionality of lifetime imprisonment especially with references to Article 1.1. of the Basic Law and the principle of the rule of law (Rechtsstaatsprinzip) revealed that a humane execution of the lifetime imprisonment can only be assured if the sentenced criminal has a concrete and principally attainable possibility to regain freedom at a later point in time; for the core of human dignity is struck if the convicted criminal has to give up any hope of regaining his freedom no matter how his personality develops. In order to assure this perspective [to regain freedom at some point in the future], which is the prerequisite for rendering lifetime imprisonment bearable according to the [court's] understanding of human dignity, in a manner which meets constitutional requirements, the [current] legal rules of parole are not sufficient.

b) [The court then discusses possibilities to improve the current legal rules of granting parole. Although it leaves it to the legislator to find regulations which would meet constitutional requirements it discusses in an affirmative manner a reform proposal drafted by the Justice Ministry.] This draft provides that the execution of the penal sanction of life imprisonment can be suspended under parole with the consent [of the inmate] after an adequate part of the sentence has passed--the draft proposes 12 to 15 years--and one can justify to test whether the convict will cease to commit crimes. The decision whether to release [the inmate] shall be rendered by independent parole review boards. These decisions may be appealed at specified higher courts. The foreword of the draft states that under certain circumstances it shall be possible to suspend the continued execution of a lifetime sentence...

[signed by all eight judges]

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